This motion by, defendants, for an order pursuant to CPLR 3212, granting summary judgment in favor of the defendants against the plaintiffs, Barry Pastor and Carol Ann Pastor, and for such other and further relief as this Court may deem just and proper, is determined as hereinafter set forth.

The plaintiff was using a six-foot ladder, pliers, and tie wraps to perform his job (dressing previously installed electrical wires). The plaintiff testified at his deposition that this job required him to ascend and descend the ladder between 10 and 50 times that day, and that he was directed to perform this task by his foreman, also an employee of B&G Electric.

At approximately 5:00 PM the plaintiff descended his ladder and while stepping to [*2]the ground, slipped on a piece of copper piping and fell sustaining injuries to his neck, both shoulders, and his right elbow. The plaintiff subsequently underwent surgery.

In addition, the defendants contend that the plaintiff's claim based on Labor Law § 241(6) should be dismissed. The defendants state that in order to maintain an action based on § 241(6) the plaintiff must premise his claim upon a violation of an applicable Industrial Code provision (here, the plaintiff relies on 12 NYCRR 23-1.7(d), and 23-1.7(e)(1)(2)). The defendants argue that the place where the plaintiff slipped was not a "passageway" under 23-1.7(e)(1), nor was it a "working area" under 23-1.7(e)(2). The defendants also contend that the condition causing the injuries to the plaintiff (the copper pipe on the floor) was not a "slipping hazard" under 23-1.7(d).

Furthermore, the defendants further aver that the plaintiff's claim under Labor Law § 200 and common law negligence should also fail. It is argued that the plaintiff cannot

establish that the defendants exercised the requisite level of supervision and control over the work performed by the plaintiff needed to impose liability under § 200. The defendants also contend that there existed no actual or constructive notice of the condition that caused the plaintiff's injuries, namely, that copper piping was being left on the floor of the room where plaintiff was working, therefore, an action under § 200 cannot be maintained.

The plaintiffs argue that the defendants are liable under Labor Law§ 241(6) based on violations of 12 NYCRR 23-1.7(d), 23-1.7(e)(1)(2).

In their verified complaint, the plaintiffs contend that a "slipping hazard" under 23-1.7(d) was created when the piece of copper pipe was not removed from the floor of the electrical/refrigeration room where the injured plaintiff was working. He argues that the copper piping was not consistent with the work he was performing, and therefore created a hazard when it was not removed after the plumbers completed their job on the [*3]date of his accident.

Furthermore, the plaintiff avers that a "passageway" under 23-1.7(e)(1) was created when he was required to use a ladder to perform the job of tying off the overhead wires. It is the plaintiff's position that a passageway was created at the point where the ladder met the floor because there existed no other way to step off of the ladder other than to use the area immediately beneath the bottom rung.

The plaintiffs also argues that, pursuant to 23-1.7(e)(2), the floor immediately surrounding the ladder was a "work area" which should have been kept free from the accumulation of dirt and debris; and that 23-1.7(e)(2) carves out an exception to liability "when the debris causing the injury is consistent with the work being performed." The plaintiff contends that the copper pipe was not consistent with the work he was performing, and the plumbers had already left for the day, therefore the debris he slipped on was not consistent with any work he was performing in the work area occupied by him.

The plaintiffs further contend that the defendants are liable under Labor Law § 200, and common law negligence. The plaintiffs argue that the defendants exercised sufficient control over the work site to subject them to § 200 and common law liability.

The plaintiffs state in their motion papers that the defendants drafted contracts between themselves and the subcontractors, and determined where materials would be stacked and how debris would be removed.

Related to the issue of debris removal is the plaintiffs' argument that there existed an "unwritten rule" regarding the clean up of copper pipe scrap. Specifically, the plaintiffs aver that defendant RAC's own plumbers would remove the copper pipe scrap themselves in order to sell the excess copper and retain the profit thereof. The plaintiffs contend that this creates an issue of fact as to who controlled the work site procedures.

Lastly, the plaintiffs argue that the defendants knew or should have known of the unsafe environment on the work site. The plaintiffs contend that a reasonable inspection by the defendants would have revealed the copper pipe lying on the floor in the room where the plaintiff was performing his job.

"It is well established that a party moving for summary

judgment must make a prima facie showing of entitlement

as a matter of law, offering sufficient evidence to demonstrate

the absence of any material issues of fact (Winegrad v New

York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d

316, 476 NE2d 642; Zuckerman v City of New York, 49

NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718). Of course,

summary judgment is a drastic remedy and should not be

granted where there is any doubt as to the existence of a

triable issue (State Bank of Albany v McAuliffe, 97 AD2d

607, 467 NYS2d 944), but once a prima facie showing has

been made, the burden shifts to the party opposing the motion

for summary judgment to produce evidentiary proof in

admissible form sufficient to establish material issues of fact

which require a trial of the action (Alvarez v Prospect Hosp.,

68 NY2d 320, 324, 508 NYS2d 923, 501 NE2d 572;

Zuckerman v City of New York, supra , 49 NY2d at 562,

427 NYS2d 595, 404 NE2d 718)".

Applying those principles to the case at bar has warranted an examination of the

record presented to this court which includes pertinent pleadings, deposition transcripts, and other relevant data. Every reasonable inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the plaintiff.

For the case at bar to proceed, that is, for the defendants' summary judgment motion to be defeated, a question of fact must exist as to: The condition of the workplace at the time of the plaintiff's injury, or, the ownership or control of the work site by the defendants.

Turning first to that part of the defendants' motion for summary judgment regarding the plaintiffs' Labor Law § 240(1) claim, this court holds that based on the facts presented, §240(1) is not applicable to the present action. "Since the injured plaintiff did not fall from an elevation Labor Law § 240(1) clearly does not apply" (Smith v. County of Nassau, 242 AD2d 380, 662 NYS2d 70, 2nd Dept., 1997).

Labor Law § 240(1) requires contractors and owners to provide safety devices in order to protect against "such specific gravity-related accidents as falling from height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 601 NYS2d 49, 1993).

Furthermore, the plaintiffs do not oppose this branch of the defendants' motion. Accordingly, the defendants' motion for summary judgment based on the plaintiffs' §240(1) [*5]claim is hereby granted.

With respect to the plaintiffs' Labor Law § 241(6) claim, "In order to sustain a cause of action based on § 241(6), a plaintiff must allege and prove that there has been a violation of some specification of the State Industrial Code" (Rizzuto v. Wenger Contracting Co., 91 NY2d 343, 670 NYS2d 816, 1998). "Alleging a violation of the Industrial Code is a predicate to imposing liability upon the defendant" (Id.).

In the case at bar, the plaintiff alleges violations of Industrial Code 12 NYCRR 23-1.7(d), 23-1.7(e)(1), and 23-1.7(e)(2). Each provision will be addressed in turn:

Industrial Code 23-1.7(d) states, "[e]mployers shall not suffer or permit to suffer and employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in slippery condition" (emphasis added).

By his own admission, through his deposition testimony, the plaintiff stated that he fell from his ladder after slipping on a piece of copper pipe that was lying on the ground. "As I descended the ladder, I put my right foot down, I put my weight on it and all of a sudden my right foot went out completely underneath me" (Deposition of B. Pastor, page 25).

The plaintiff was not working on an elevated surface within the scope of 12 NYCRR 23-1.7(d) and can therefore not rely upon that provision as a foundation for a §241(6) claim. The branch of the defendants' summary judgment motion based on plaintiffs' 23-1.7(d) claim is hereby granted.

The plaintiffs next seek to impose liability on the defendants under § 241(6) through 12 NYCRR 1.7(e)(1). Provision (e) refers to "tripping and other hazards", while subsection (1) specifically deals with passageways. The plaintiff avers that the area adjacent to the footing of the ladder constitutes a passageway since "[h]e had no other way to go" (Plaintiff's Affirmation in Opposition, paragraph 31).

While the plaintiff cites several cases to bolster his position, these cases refer to stairways (Halloway v. Sachs & Sachs, 275 AD2d 625, 713 NYS2d 162, 1

st

Dept.) and scaffolding (Walen v. City of New York, 278 AD2d 340, 704 NYS2d 305, 2nd Dept.) as passageways, not ladders. The plaintiff offers no direct support, nor has this court found any direct support for the plaintiff's argument that his ladder "created" a passageway, and

the branch of the defendants' summary judgment motion, requesting dismissal of the plaintiffs' 23-1.7(e)(1) claim is hereby granted.

The next branch of the defendants' summary judgment motion seeks to dismiss the plaintiffs' 23-1.7(2) claim. This provision of the Industrial Code addresses general hazards in "working areas". In pertinent part, the provision reads, "[t]he parts of floors,

platforms and similar areas where persons work or pass shall be kept free from accumulation of [*6]dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed" (emphasis added).

In support of their motion, the defendants cite several cases. In Harvey v. Morse Diesel Int'l, (299 AD2d 451, 750 NYS2d 117, 2nd Dept., 2000) the Appellate Division dismissed an action brought by a plaintiff electrician who was injured when he tripped over an electrical cable, but the facts in Harvey indicate that the tripping hazard (the cable) was part of the work the plaintiff was performing, thereby being consistent with the work he was performing.

In another case cited by the defendants, Alvia v. Teman Elec. Contr. Inc., (287 AD2d 421, 731 NYS2d 462, 2nd Dept., 2001), the plaintiff tripped over plywood he himself was using while performing his job. The material was part of the work he was performing, and he was therefore denied recovery.

In the instant case plaintiff slipped on a piece of copper pipe left over from another contractors job. The plaintiff, an electrician, was not using copper pipe when he was injured, nor is copper pipe "consistent with the work" he was asked to perform. In contrast to the cases cited in support the defendants' motion, the plaintiff did not injure himself by tripping over materials being used in furtherance of his craft.

The facts alleged by the plaintiff raise a triable issue of fact as to whether the copper pipe that allegedly caused his accident "was an integral part of his work or was a tripping hazard as defined in 12 NYCRR 23-1.7(e)(2)" (Giza v. New York City School Constr. Auth., 22 AD3d 800, 803 NYS2d 162, 2nd Dept., 2005). For this reason, the branch of the defendants' summary judgment motion seeking to dismiss plaintiffs' §241(6) claim is hereby denied.

With respect to the plaintiff's claim of a violation of Labor Law § 200, it is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site (Rizzuto, supra ). "It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition" (Id., emphasis added).

In the current action, the plaintiffs' opposition to the summary judgment motion is based on testimony elicited from the defendants' representatives during examination before trial. Mr. Salvatore Sbriglio, defendant Stop & Shop's project construction manager, stated that he would visit the Northport construction site "[t]wo to three times a week" in order to "[o]versee [defendant's] interest" (Deposition of S. Sbriglio, page 11). Sbriglio also stated that the issue of debris cleanup was discussed during job meetings held on a weekly basis (Deposition of S. Sbriglio, page 14).

Additionally, Tom Ormandy, defendant AXIS's project supervisor testified before trial. Mr. Ormandy stated that an AXIS safety officer was on site "weekly" (Deposition of T. Ormandy, page 9). Mr. Ormandy also testified that AXIS "forward [the safety reports] to Stop & [*7]Shop" (Deposition of T. Ormandy, page 10). Mr. Ormandy stated that although a subcontractor was hired to perform cleanup functions, the subcontractor did

not clean up copper pipe scraps. Instead, when asked who would clean up the copper pipe, Mr. Ormandy replied, "RAC [defendant] would" (Deposition of T. Ormandy, page 40). Mr. Ormandy's testimony further stated that defendant RAC's own employees would remove the copper pipe in order to exchange it for money.

Furthermore, the testimony of defendant RAC's Vice-president Frank Heller verified the copper pipe cleanup practices. Mr. Heller stated "[o]ne guy [RAC employee] would take the piece and bring it to their cart or basket. It's scrap pipe to them and they keep the scraps" (Deposition of F. Heller, page 21).

Additionally, the plaintiffs have provided this court with a copy of a "Safety Violation Citation", written by Mr. Sbriglio on a Stop & Shop form, naming B & G (plaintiff's employer) in violation of two of Stop & Shop's safety procedures (Affirmation in Opposition, Exhibit 12).

While the plaintiff's own EBT statement establishes the defendants did not control the work he performed, in light of the deposition testimony regarding construction site visitation, cleanup, and safety procedures, and the documentary evidence provided by the plaintiffs, this court finds that there exists a triable issue with regards to the defendants' control over the activity that caused the plaintiff's injuries, namely, the cleanup of the copper pipe and the implementation and enforcement of safety procedures. The defendants ' motion for summary judgment based on the plaintiffs' § 200 claim is hereby denied .

Those branches of the defendants' summary judgment motion regarding plaintiffs' Labor Law § 240(1), and § 241(6) claims (insomuch as the plaintiffs rely on Industrial Code 12 NYCRR 23-1.7(d), and 23-1.7(e)(1) to support liability) are hereby granted.

Those branches of the defendants' summary judgment motion regarding plaintiffs' Labor Law § 200 and § 241(6) claims (insofar as the plaintiffs rely on Industrial Code 12 NYCRR 23-1.7(e)(2) to support liability) are hereby denied.

J.S.C.